Nicolls v. Ingersoli , 7 Johns. 145 ( 1810 )

Thompson, J.

delivered the opinion of the court. Several questions were made on the argument of this case. The first in order was, whether bail could depute or authorize another person in his stead, to take and surrender his principal. In Boardman v. Fowler, (1 Johns. Cas. 314.) decided in this court, the surrender was made by an agent of the bail, and one of the objections taken to it was, that bail could not depute for this purpose. By the form of the' certificate, however, the principal appeared to have surrendered himself, and the court said they would presume it was done voluntarily. But if it had been necessary to decide the question, they were inclined to the opinion that special bail may depute, ex necessitate. The case of Meadowscraft v. Sutton, (1 Bos. & Pull. 62.) shows, that the executor of bail may surrender the principal. This may fall within the rule suggested in the last case; but they both go to establish the general principle, that the right to surrender results from the relation between the bail and principal; that it is to be effected as circumstances shall require, and is not-a personal power or authority, tobe executed by the bail only. Lord Ellenborough, in Fisher v. Fellows, (5 Esp. Cas. 171.) allowed bail to recover against his principal the expenses of- sending after him to take him, for the purpose of making a surrender. The bail, says he, has a right to surrender the principal in his own discharge, and for his own security; and if the principal absconds, so that he cannot be had, the bail may take every proper and necessary step to secure him. It is not expressly stated, that the person sent after the principal was deputed to take him; but it is fairly to be presumed, that such was the fact. I see nothing, on general principles, against allowing this power to be exercised by an agent or deputy; and no case is to be found where the right has been denied. It is a general rule of law, even with respect to public officers, that their ministerial acts may be performed by deputy; and with respect to private individuals, the law recognises the act of an authorized agent as equal to that of the principal; and there is no principle of policy which renders it necessary to make this case an exception.

The next inquiry is, as to the right of bail to take the principal out of the state in which the recognisance was entered into. I do not perceive- how any question of jurisdiction can arise here. The power of taking and surrendering is not exercised:under any judicial process, but results from the nature of the undertaking by the bail. The bail-piece is not process, nor any thing in the nature of it; but is merely a record or memorial of the delivery of the principal to his bail, on security given. It cannot be questioned, but that bail in the common pleas would have a right to go into any other county in the state to take his principal; this shows that the jurisdiction of the court in no way controls the authority of the bail; and as little can. the jurisdiction of the state affect this right, as between the bail and his principal. How far the government would have a right to consider its peace disturbed, or its jurisdiction violated, or whether relief would not be granted on habeas corpus, where a citizen of this state was about to be carried to a foreign country, are questions not now before the court.

A recurrence to a few cases in the books, showing the relation in which the law considers the bail as standing towards his principal, will render it obvious, that the power with which he is clothed is not one restricted in its exercise to any particular place. Sir William Blackstone (3 Com. 290.) says, the security given for the appearance of a party arrested, is called bail, because the defendant is delivered to the surety, and is supposed to continue in his friendly custody, instead of going to gaol.

Bail, in the language of the books, are said (6 Mod. 231.) to have their principal always upon a string, which they may pull whenever they please, and surrender him in their own discharge. They may take him up, even upon a Sunday, and confine him until the next day, and then surrender him. The doing so on Sunday is no service of process, but rather like the case where the sheriff arrests a party who escapes, for that is only a continuance of the former imprisonment. Lord Hardwicke says, (1 Atk. 237. Ex parte Gibbons,) it is the constant language of courts, that bail are their principals’ gaolers, and that it is upon this notion that they have an authority to take them ; and that, as the principal is at liberty only by the permission and indulgence of the bail, they may take him up at any time. The same principle is recognised in Shoxjuer, (Anonymous Case, 214.) where it is said by the court, that bail are but gaolers, pro tempore; and in case a man absconds, and his bail cannot find him, they shall have a warrant to take him out of any pretended place of privilege, in order to surrender him, because he is a prisoner to the court, and they may call him at pleasure. If the principal is to be considered as standing in the situation of a prisoner who has escaped from the arrest of the sheriff, according to the language of one of the cases, can there be any reasonable doubt but a sheriff, in such case, would have a right to pursue and arrest his prisoner in a neighbouring state; and, by parity of reasoning, bail must have the like authority. The cases I have referred to are suEciefit to show that the law' considers the principal as a prisoner, whose gaol liberties are enlarged or circumscribed, at the will of his ° bail; and, according to this view of the subject, it would ■ Seem necessarily to" follow, that, as between the bail and his principal, the controlling power of the former over the latter ro.a)7 be exercised at all times and in all places ; and this appears to me indispensable for the safety and security of bail.

Another" question presented was, whether the bail had a right to break open the outer- door of the plaintiff’s house to make the arrest. The verdict authorizes us to presume, that a demand was made before entry; for this fact was submitted to the jury as being necessary to be shown by the defendant, to render the . entry lawful. That the bail may break open the outer door of the principal, if necessary, in order to arrest him,-follows, as a necessary consequence, from the doctrine,' that he has the custody of the principal; his power is analogous to that of the sheriff, who may break open an outer door to take a prisoner, who has escaped from arrest. But the case of Shears v. Brooks, (2 H. Black. 120.) goes the whole length of this doctrine. Lord Loughborough there says, when a party is bailed, the bail have a right to go into the house of the principal, as much as he has himself. They have a right to be constantly with him, and to enter when they please, and take him. The right to break open the plaintiff’s house, in the case before us, is fortified by the circumstance of his having been taken a few days before, on the bail-piece. His situation, in point of fact, as well as in judgment of law, was somewhat analogous to that of a party escaping from arrest.

One of the judges made an observation, in the case last referred to, which is very important, and shows, that, on all these points, the rights of the bail should be liberally considered. He said, that a determination, in that case, against the right of the bail to enter the house, would affect the liberty of the subject, as it would make it extremely difficult to procure bail.

The objection, that the bail had discharged the judgment, and for his indemnity had arrested the plaintiff here) and held him to bail, is not supported by the requisite evidence to establish the fact. The loose declarations relative to a bail-piece against the plaintiff, in a cause for the same demand, was not such evidence as the case required, and was in the power of the party. There is nothing in the case to warrant us in saying that the time to surrender had elapsed. If that was the fact, it was susceptible of clear and positive proof; and if the plaintiff intended to rely upon that allegation, he was bound to support it by satisfactory evidence.

Whether the authority to arrest was not abused by the exertion of undue force, or unnecessary severity, has been decided by the jury in favour of the defendant. This was matter of fact, proper for their determination, and was very fairly submitted to them. The verdict, therefore, on this point, ought not to be disturbed.

The motion for a new trial must be denied.

Spencer, J. not having heard the argument in the cause, gave no opinion.

Rule refused.